At petitioner's state-court drug trial, the prosecution introduced
certificates of state laboratory analysts stating that material seized by
police and connected to petitioner was cocaine of a certain quantity. As
required by Massachusetts law, the certificates were sworn to before a
notary public and were submitted as prima facie evidence of what they
asserted. Petitioner objected, asserting that Crawford v. Washington,
541 U. S. 36, required the analysts to testify in person. The trial court
disagreed, the certificates were admitted, and petitioner was convicted. The
Massachusetts Appeals Court affirmed, rejecting petitioner's claim that the
certificates' admission violated the Sixth Amendment.

Held: The admission of the certificates violated petitioner's Sixth
Amendment right to confront the witnesses against him. Pp. 309-329.

(a) Under Crawford, a witness's testimony against a defendant is
inadmissible unless the witness appears at trial or, if the witness is
un-available, the defendant had a prior opportunity for cross-examination.
541 U. S., at 54. The certificates here are affidavits, which fall within
the "core class of testimonial statements" covered by the Confrontation
Clause, id., at 51. They asserted that the substance found in petitioner's
possession was, as the prosecution claimed, cocaine of a certain weight —
the precise testimony the analysts would be expected to provide if called at
trial. Not only were the certificates made, as Crawford required for
testimonial statements, "under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use
at a later trial," id., at 52, but under the relevant Massachusetts law
their sole purpose was to provide prima facie evidence of the substance's
composition, quality, and net weight. Petitioner was entitled to "be
confronted with" the persons [***319] giving this testimony at trial. Id., at 54. Pp.
309-311.

(b) The arguments advanced to avoid this rather straightforward application
of Crawford are rejected. Respondent's claim that the analysts are not
subject to confrontation because they are not "accusatory" witnesses finds
no support in the Sixth Amendment's text or in this Court's case law. The
affiants' testimonial statements were not "nearly contemporaneous" with
their observations, nor, if they had been, would that fact alter the
statements' testimonial character. There is no support for the proposition
that witnesses who testify regarding facts other
[*306]
than those observed at the crime scene are exempt from confrontation. The
absence of interrogation is irrelevant; a witness who volunteers his
testimony is no less a witness for Sixth Amendment purposes. The affidavits
do not qualify as traditional official or business records. The argument
that the analysts should not be subject to confrontation because their
statements result from neutral scientific [****2] testing is little more than an
invitation to return to the since-overruled decision in Ohio v. Roberts,
448 U. S. 56, 66, which held that evidence with "particularized guarantees
of trustworthiness" was admissible without confrontation. Petitioner's power
to subpoena the analysts is no substitute for the right of confrontation.
Finally, the requirements of the Confrontation Clause may not be relaxed
because they make the prosecution's task burden-some. [**2530] In any event, the
practice in many States already accords with today's decision, and the
serious disruption predicted by respondent and the dissent has not
materialized. Pp. 312-328.

Jeffrey L. Fisher argued the cause for petitioner. With him on the briefs
were Pamela S. Karlan, Amy Howe, Kevin K. Russell, Mary T. Rogers, and
Thomas C. Goldstein. Martha Coakley, Attorney General of Massachusetts,
argued the cause for respondent. With her on the brief were James J. Arguin
and David S. Friedman, Assistant Attorneys General.

Lisa H. Schertler argued the cause for the United States as amicus curiae
urging affirmance. With her on the brief were former Solicitor GeneralGarre, Acting Assistant Attorney General Friedrich, and Deputy SolicitorGeneral Dreeben.[fn*]

The Massachusetts courts in this case admitted into evidence affidavits
reporting the results of forensic analysis which showed that material seized
by the police and connected to the defendant was cocaine. The question
presented is whether those affidavits are "testimonial," rendering the
affiants "witnesses" subject to the defendant's right of confrontation under
the Sixth Amendment.

I

In 2001, Boston police officers received a tip that a Kmart employee,
Thomas Wright, was engaging in suspicious
activity. [*308] The informant reported that Wright repeatedly received phone calls
at work, after each of which he would be picked up in front of the store by
a blue sedan, and would return to the store a short time later. The police
set up surveillance in the Kmart parking lot and witnessed this precise
sequence of events. When Wright got out of the car upon his return, one of
the officers detained and searched him, finding four clear white plastic
bags containing a substance resembling cocaine. The officer then signaled
other officers on the scene to arrest the two men in the [***320] car — one of whom
was petitioner Luis Melendez-Diaz. The officers placed all three men in a
police cruiser.

During the short drive to the police station, the officers observed their
passengers fidgeting and making furtive movements in the back of the car.
After depositing the men at the station, they searched the police cruiser
and found a plastic bag containing 19 smaller plastic bags hidden in the
partition between the front and back seats. They submitted the seized
evidence to a state laboratory required by law to conduct chemical analysis
upon police request. Mass. Gen. Laws, ch. Ill, § 12 (West 2006).

Melendez-Diaz was charged with distributing cocaine and with trafficking
in cocaine in an amount between 14 and 28 grams. Ch. 94C, § 32A, 32E(b)(1).
At trial, the prosecution placed into evidence [**2531] the bags seized from Wright
and from the police cruiser. It also submitted three "certificates of
analysis" showing the results of the forensic analysis performed on the
seized substances. The certificates reported the weight of the seized bags
and stated that the bags "[h]a[ve] [****3] been examined with the following results:
The substance was found to contain: Cocaine." App. to Pet. for Cert. 24a,
26a, 28a. The certificates were sworn to before a notary public by analysts
at the State Laboratory Institute of the Massachusetts Department of Public
Health, as required under Massachusetts law. Mass. Gen. Laws, ch. 111, § 13[*309] .

Petitioner objected to the admission of the certificates, asserting that
our Confrontation Clause decision in Crawford v. Washington, 541 U. S. 36
(2004), required the analysts to testify in person. The objection was
overruled, and the certificates were admitted pursuant to state law as
"prima facie evidence of the composition, quality, and the net weight of the
narcotic . . . analyzed." Mass. Gen. Laws, ch. 111, § 13.

[1] The Sixth Amendment to the United States Constitution, made applicable to
the States via the Fourteenth Amendment, Pointer v. Texas, 380 U. S. 400,
403 (1965), provides that "[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him." [2] In
Crawford, after reviewing the Clause's historical underpinnings, we held
that it guarantees a defendant's right to confront those "who 'bear
testimony'" against him. 541 U. S., at 51. [3] A witness's testimony against a
defendant is thus inadmissible unless [***321] the witness appears at trial or, if
the witness is unavailable, the defendant had a prior opportunity for
cross-examination. Id., at 54.

Our opinion described the class of testimonial statements covered by the
Confrontation Clause as follows:
[*310]

"Various formulations of this core class of testimonial statements
exist: ex parte in-court testimony or its functional equivalent —
that is, material such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine, or similar
pretrial statements that declarants would reasonably expect to be
used proseeutorially; extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits, depositions,
prior testimony, or confessions; statements that were made under
circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later
trial." Id., at 51-52 (internal quotation marks and citations
omitted).
[**2532]

There is little doubt that the documents at issue in this case fall within
the "core class of testimonial statements" thus described. Our description
of that category mentions affidavits twice. See also White v. Illinois,
502 U. S. 346, 365 (1992) (THOMAS, J., concurring in part and concurring in
judgment) ("[T]he [****4] Confrontation Clause is implicated by extrajudicial
statements only insofar as they are contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or
confessions"). The documents at issue here, while denominated by
Massachusetts law "certificates," are quite plainly affidavits:
"declaration[s] of facts written down and sworn to by the declarant before
an officer authorized to administer oaths." Black's Law Dictionary 62 (8th
ed. 2004). They are incontrovertibly a "'solemn declaration or affirmation
made for the purpose of establishing or proving some fact.'" Crawford,supra, at 51 (quoting 2 N. Webster, An American Dictionary of the English
Language (1828)). The fact in question is that the substance found in the
possession of Melendez-Diaz and his co-defendants was, as the prosecution
claimed, cocaine — the precise testimony the analysts would be expected to
provide if called at trial. The "certificates" are functionally identical
[*311]
to live, in-court testimony, doing "precisely what a witness does on direct
examination." Davis v. Washington, 547 U. S. 813, 830 (2006) (emphasis
deleted).

Here, moreover, not only were the affidavits "'made under circumstances
which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial,'" Crawford, supra, at
52, but under Massachusetts law the sole purpose of the affidavits was to
provide "prima facie evidence of the composition, quality, and the net
weight" of the analyzed substance, Mass. Gen. Laws, ch. Ill, § 13. We can
safely assume that the analysts were aware of the affidavits' evidentiary
purpose, since that purpose — as stated in the relevant state-law provision
— was reprinted on the affidavits themselves. See App. to Pet. for Cert.
25a, 27a, 29a.

[4] In short, under our decision in [***322]Crawford the analysts' affidavits were
testimonial statements, and the analysts were "witnesses" for purposes of
the Sixth Amendment. Absent a showing that the analysts were unavailable to
testify at trial and that petitioner had a prior opportunity to
cross-examine them, petitioner was entitled to "'be confronted with'" the
analysts at trial. Crawford, supra, at 54.[*312][fn1]

III

Respondent and the dissent advance a potpourri of analytic arguments in an
effort [**2533] to avoid this rather straight-forward application of our holding in
Crawford. Before addressing them, however, we must assure the reader of the
falsity of the dissent's opening alarum that we are "sweep[ing] away an
accepted rule governing the admission of scientific evidence" that has been
"established for at least 90 years" and "extends across at least 35 States
and six Federal Courts of Appeals." Post, at 330.

The vast majority of the state-court cases the dissent cites in support of
this claim come not from the last 90 years, but from the last 30, and not
surprisingly nearly all of them rely on our decision in Ohio v. Roberts,
448 U. S. 56 (1980), or its since-rejected theory that unconfronted
testimony was admissible as long as it bore indicia of reliability, id., at
66. See post, at 357-358.[fn2] As for the six Federal Courts of Appeals
cases cited by the dissent, [****5] five of them postdated and expressly relied on
Roberts. See post, at 349-350. The sixth predated Roberts but relied
entirely on the same erroneous theory. See Kay v. United States,
255 F. 2d 476, 480-481 (CA4 1958) (rejecting Confrontation Clause challenge
"where there is reasonable necessity for [the evidence] and where . . . the
evidence has those qualities of reliability and trustworthiness").

A review of cases that predate the Roberts era yields a mixed picture. As
the dissent notes, three State Supreme Court decisions from the early 20th
century denied confrontation with respect to certificates of analysis
regarding a
[*313]
substance's alcohol content. See post, at 349 (citing cases from
Massachusetts, [***323] Connecticut, and Virginia). But other state courts in the
same era reached the opposite conclusion. See Torres v. State,
113 Tex. Crim. 1, 2-4, 18 S. W. 2d 179, 180 (1929); Volrich v. State,
4 Ohio L. Abs. 253 (App. 1925) (per curiam). At least this much is entirely
clear: In faithfully applying Crawford to the facts of this case, we are not
overruling 90 years of settled jurisprudence. It is the dissent that seeks
to overturn precedent by resurrecting Roberts a mere five years after it was
rejected in Crawford.

We turn now to the various legal arguments raised by respondent and the
dissent.

A

Respondent first argues that the analysts are not subject to confrontation
because they are not "accusatory" witnesses, in that they do not directly
accuse petitioner of wrongdoing; rather, their testimony is inculpatory only
when taken together with other evidence linking petitioner to the
contraband. See Brief for Respondent 10. This finds no support in the text
of the Sixth Amendment or in our case law.

The Sixth Amendment guarantees a defendant the right "to be confronted
with the witnesses against him." (Emphasis added.) To the extent the
analysts were witnesses (a question resolved above), they certainly provided
testimony against petitioner, proving one fact necessary for his conviction
— that the substance he possessed was cocaine. The contrast between the text
of the Confrontation Clause and the text of the adjacent Compulsory Process
[**2534] Clause confirms this analysis. While the Confrontation Clause guarantees a
defendant the right to be confronted with the witnesses "against him," the
Compulsory Process Clause guarantees a defendant the right to call witnesses
"in his favor." U. S. Const., Amdt. 6. The text of the Amendment
contemplates two classes of witnesses — those against the defendant and
those in his favor. The prosecution must produce the
former;[*314][fn3] the defendant may call the latter. [5] Contrary to respondent's
assertion, there is not a third category of witnesses, helpful to the
prosecution, but somehow immune from confrontation.

It is often, indeed perhaps usually, the case that an adverse witness's
testimony, taken alone, will not suffice to convict. Yet respondent fails to
cite a single case in which such testimony was admitted absent a defendant's
opportunity to cross-examine.[fn4] Unsurprisingly, since such a holding
would be contrary to longstanding case law. In Kirby v. United States,
174 U. S. 47 (1899), the Court considered Kirby's [***324] conviction [****6] for receiving
stolen property, the evidence for which consisted, in part, of the records
of conviction of three individuals who were found guilty of stealing the
relevant property. Id., at 53. Though this evidence proved only that the
property was stolen, and not that Kirby received it, the Court nevertheless
ruled that admission of the records violated Kirby's rights under the
Confrontation Clause. Id., at 55. See also King v. Turner, 1 Mood. 347,
168 Eng. Rep. 1298 (1832) (confession by one defendant to having stolen
certain goods could not be used as evidence against another defendant
accused of receiving the stolen property).
[*315]

B

Respondent and the dissent argue that the analysts should not be subject
to confrontation because they are not "conventional" (or "typical" or
"ordinary") witnesses of the sort whose ex parte testimony was most
notoriously used at the trial of Sir Walter Raleigh. Post, at 343-345; Brief
for Respondent 28. It is true, as the Court recognized in Crawford, that exparte examinations of the sort used at Raleigh's trial have "long been
thought a paradigmatic confrontation violation." 541 U. S., at 52. But the
paradigmatic case identifies the core of the right to confrontation, not its
limits. The right to confrontation was not invented in response to the use
of the ex parte examinations in Raleigh's Case, 2 How. St. Tr. 1 (1603).
That use provoked such an outcry precisely because it flouted the deeply
rooted common-law tradition "of live testimony in court subject to
adversarial testing." Crawford, supra, at 43 (citing 3 W. Blackstone,
Commentaries on the Laws of England 373-374 ([**2535] 1768)). $5ee also Crawford,supra, at 43-47.

In any case, the purported distinctions respondent and the dissent
identify between this case and Sir Walter Raleigh's "conventional" accusers
do not survive scrutiny. The dissent first contends that a "conventional
witness recalls avents observed in the past, while an analyst's report
Contains near-contemporaneous observations of the test." Post, at 345. It is
doubtful that the analyst's reports in this case could be characterized as
reporting "near-contemporaneous observations"; the affidavits were completed
almost a week after the tests were performed. See Xpp. to Pet. for Cert.
24a-29a (the tests were performed on November 28, 2001, and the affidavits
sworn on December 4, 2001). But regardless, the dissent misunderstands the
role that "near-contemporaneity" has played in our case law. The dissent
notes that that factor was given "substantial height" in Davis, post, at
345, but in fact that decision disproves the dissent's position. There the
Court considered
[*316]
the admissibility of statements made to police officers responding to a
report of a domestic disturbance. By the time officers arrived the assault
had ended, but the victim's statements — written and oral — were
sufficiently close in time to the alleged assault that the trial court
admitted her affidavit as a "present sense impression." 547 U. S., at 820
(internal quotation marks omitted). Though the witness's statements in Davis[***325]
were "near-contemporaneous" to the events she reported, we nevertheless held
that they could not be admitted [****7] absent an opportunity to confront the
witness. Id., at 830.

A second reason the dissent contends that the analysts are not
"conventional witnesses" (and thus not subject to confrontation) is that
they "observe[d] neither the crime nor any human action related to it."
Post, at 345. The dissent provides no authority for this particular
limitation of the type of witnesses subject to confrontation. Nor is it
conceivable that all witnesses who fit this description would be outside the
scope of the Confrontation Clause. For example, is a police officer's
investigative report describing the crime scene admissible absent an
opportunity to examine the officer? The dissent's novel exception from
coverage of the Confrontation Clause would exempt all expert witnesses — a
hardly "unconventional" class of witnesses.

A third respect in which the dissent asserts that the analysts are not
"conventional" witnesses and thus not subject to confrontation is that their
statements were not provided in response to interrogation. Post, at 345-346.
See also Brief for Respondent 29. As we have explained, "[t]he Framers were
no more willing to exempt from cross-examination volunteered testimony or
answers to open-ended questions than they were to exempt answers to detailed
interrogation." Davis, supra, at 822-823, n. 1. Respondent and the dissent
cite no authority, and we are aware of none, holding that a person who
volunteers his testimony is any less a "'witness against' the defendant,"
Brief for Respondent 26, than one who is responding to interrogation. In any
event, the
analysts' [*317] affidavits in this case were presented in response to a police
request. See Mass. Gen. Laws, ch. Ill, § 12-13. If an affidavit submitted in
response to a police officer's request to "write down what happened"
suffices to trigger the Sixth Amendment's protection (as it apparently does,
see Davis, 547 U. S., at 819-820; id., at 840, n. 5 (THOMAS, J., concurring
in judgment in part and dissenting in part)), then the analysts' testimony
should be subject to confrontation as well.
[**2536]

C

Respondent claims that there is a difference, for Confrontation Clause
purposes, between testimony recounting historical events, which is "prone to
distortion or manipulation," and the testimony at issue here, which is the
"resul[t] of neutral, scientific testing." Brief for Respondent 29.
Relatedly, respondent and the dissent argue that confrontation of forensic
analysts would be of little value because "one would not reasonably expect a
laboratory professional . . . to feel quite differently about the results of
his scientific test by having to look at the defendant." Id., at 31
(internal quotation marks omitted); see post, at 339.

This argument is little more than an invitation to return to our overruled
decision in Roberts, 448 U. S. 56, which held that evidence with
"particularized guarantees of trustworthiness" was admissible
notwithstanding the Confrontation Clause. Id., at 66. [***326] What we said in
Crawford in response to that argument remains true:

"To be sure, the Clause's ultimate goal is to ensure reliability
of evidence, but it is a procedural rather than a substantive
guarantee. [6] It commands, not that [****8] evidence be reliable, but that
reliability be assessed in a particular manner: by testing in the
crucible of cross-examination. . . .

. . . . .

"Dispensing with confrontation because testimony is obviously
reliable is akin to dispensing with jury trial
because [*318] a defendant is obviously guilty. This is not what the Sixth
Amendment prescribes." 541 U. S., at 61-62.

Respondent and the dissent may be right that there are other ways — and in
some cases better ways — to challenge or verify the results of a forensic
test.[fn5] But the Constitution guarantees one way: confrontation. We do not
have license to suspend the Confrontation Clause when a preferable trial
strategy is available.

Nor is it evident that what respondent calls "neutral scientific testing"
is as neutral or as reliable as respondent suggests. Forensic evidence is
not uniquely immune from the risk of manipulation. According to a recent
study conducted under the auspices of the National Academy of Sciences,
"[t]he majority of [laboratories producing forensic evidence] are
administered by law enforcement agencies, such as police departments, where
the laboratory administrator reports to the head of the agency." National
Research Council of the National Academies, Strengthening Forensic Science
in the United States: A Path Forward 183 (2009) (hereinafter National
Academy Report). And "[b]ecause forensic scientists often are driven in
their work by a need to answer a particular question related to the issues
of a particular case, they sometimes face pressure to sacrifice appropriate
methodology for the sake of expediency." Id., at 23-24. A forensic analyst
responding to a request from a law enforcement official may feel pressure —
or have an incentive — to alter the evidence in a manner favorable to the
prosecution.

[7] Confrontation is one means of assuring accurate forensic analysis. While
it is true, as the dissent notes, that an honest analyst will not alter his
testimony when forced to confront the defendant, post, at 339, the same
cannot be said of the fraudulent analyst. See Brief for National Innocence
[*319]
Network as Amicus Curiae 15-17 ([**2537] discussing cases of documented "drylabbing"
where forensic analysts report results of tests that were never performed);
National Academy Report 44-48 (discussing documented cases of fraud and
error involving the use of forensic evidence). Like the eyewitness who has
fabricated his account to the police, the analyst who provides false results
may, under oath in open court, reconsider his false testimony. See Coy v.Iowa, 487 U. S. 1012, 1019 (1988). And, of course, the prospect of
confrontation will deter fraudulent analysis in the first place.

[8] Confrontation is designed to weed out not only the fraudulent analyst, but
the incompetent one as well. Serious deficiencies have been found in the
forensic evidence used in criminal [***327] trials. One commentator asserts that
"[t]he legal community now concedes, with varying degrees of urgency, that
our system produces erroneous convictions based on discredited forensics."
Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 491 ([****9] 2006). One
study of cases in which exonerating evidence resulted in the overturning of
criminal convictions concluded that invalid forensic testimony contributed
to the convictions in 60% of the cases. Garrett & Neufeld, Invalid Forensic
Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1, 14 (2009). And
the National Academy Report concluded:

"The forensic science system, encompassing both research and
practice, has serious problems that can only be addressed by a
national commitment to overhaul the current structure that supports
the forensic science community in this country." National Academy
Report, at xx.[fn6]

[*320] Like expert witnesses generally, an analyst's lack of proper training or
deficiency in judgment may be disclosed in cross-examination.

This case is illustrative. The affidavits submitted by the analysts
contained only the bare-bones statement that "[t]he substance was found to
contain: Cocaine." App. to Pet. for Cert. 24a, 26a, 28a. At the time of
trial, petitioner did not know what tests the analysts performed, whether
those tests were routine, and whether interpreting their results required
the exercise of judgment or the use of skills that the analysts may not have
possessed. While we still do not know the precise tests used by the
analysts, we are told that the laboratories use "methodology recommended by
the Scientific Working Group for the Analysis of Seized Drugs," App. to
Brief for Petitioner 1a-2a. At least some of that methodology requires the
exercise of judgment and presents a risk of error that might be explored on
cross-examination. See 2 P. Giannelli & E. Imwinkelried, Scientific Evidence
§ 23.03[c], pp. 532-533, and ch. 23A, p. 607 (4th ed. 2007) (identifying
four "critical errors" that analysts may commit in interpreting the results
of the commonly used gas chromatography/mass spectrometry analysis);
Shellow, The Application of Daubert to the Identification of Drugs, 2
Shepard's Expert & Scientific Evidence Quarterly 593, 600 (1995) (noting
that while spectrometers [**2538] may be equipped with computerized matching systems,
"forensic analysts in crime laboratories typically do not utilize this
feature of the instrument, but rely exclusively on their subjective
judgment").

The same is true of many of the other types of forensic evidence commonly
used in criminal prosecutions. "[T]here is wide variability across forensic
science disciplines with regard to techniques, methodologies, reliability,
types and
[*321]
numbers of potential errors, research, general acceptability, and published
material." National Academy Report 6-7. See also id., at [***328] 138-139, 142-143,
154-155 (discussing problems of subjectivity, bias, and unreliability of
common forensic tests such as latent fingerprint analysis, pattern/
impression analysis, and toolmark and firearms analysis). Contrary to
respondent's and the dissent's suggestion, there is little reason to believe
that confrontation will be useless in testing analysts' honesty,
proficiency, and methodology — the features that are commonly the focus in
the cross-examination of experts.
[****10]

D

Respondent argues that the analysts' affidavits are admissible without
confrontation because they are "akin to the types of official and business
records admissible at common law." Brief for Respondent 35. But the
affidavits do not qualify as traditional official or business records, and
even if they did, their authors would be subject to confrontation
nonetheless.

[9] Documents kept in the regular course of business may ordinarily be
admitted at trial despite their hearsay status. See Fed. Rule Evid. 803(6).
[10] But that is not the case if the regularly conducted business activity is the
production of evidence for use at trial. Our decision in Palmer v. Hoffman,
318 U. S. 109 (1943), made that distinction clear. There we held that an
accident report provided by an employee of a railroad company did not
qualify as a business record because, although kept in the regular course of
the rail-road's operations, it was "calculated for use essentially in the
court, not in the business." Id., at 114.[fn7][11] The analysts'
[*322]
certificates — like police reports generated by law enforcement officials —
do not qualify as business or public records for precisely the same reason.
See Rule 803(8) (defining public records as "excluding, however, in criminal
cases matters observed by police officers and other law enforcement
personnel").

Respondent seeks to rebut this limitation by noting that at common law the
results of a coroner's inquest were admissible without an opportunity for
confrontation. But as we have previously noted, whatever the status of
coroner's reports at common law in England, they were not accorded any
special status in American practice. See Crawford, 541 U. S., at 47, n. 2;
Giles v. California, 554 U. S. 353, 399-400 (2008) (BEEYER, J., dissenting);
Note, Evidence — Official Records — Coroner's Inquest, 65 U. Pa. L. Rev. 290
(1917).

The dissent identifies a single class of evidence which, though prepared
for use at trial, was traditionally admissible: a clerk's certificate
authenticating an official record — or a copy thereof — for use as evidence.
See post, at 347. But a [**2539] clerk's authority in that regard was narrowly
circumscribed. He was permitted "to certify to the correctness of a copy of
a record kept in his office," but had "no authority to furnish, as evidence
for the trial of a lawsuit, his interpretation of what the record contains
or shows, or to certify to its substance or effect." State v. Wilson[***329],
141 La. 404, 409, 75 So. 95, 97 (1917). See also State v. Champion,
116 N. C. 987, 988-989, 21 S. E. 700, 700-701 (1895); 5 J. Wigmore, Evidence
§ 1678 (3d ed. 1940). The dissent suggests that the fact that this exception
was "'narrowly circumscribed'" makes no difference. See post, at 348. To the
contrary, it makes all the difference in the world. It shows that even the
line of cases establishing the one narrow exception the dissent has been
able to identify simultaneously vindicates the general rule applicable to
the present case. A clerk could by affidavit authenticate or provide a copy
of an
otherwise [*323] admissible record, but could not do what the analysts did here:
create a record for the sole purpose of providing evidence against a
defendant.[fn8]

Far more probative here are those cases in which the prosecution sought to
admit into [****11] evidence a clerk's certificate attesting to the fact that the
clerk had searched for a particular relevant record and failed to find it.
Like the testimony of the analysts in this case, the clerk's statement would
serve as substantive evidence against the defendant whose guilt depended on
the nonexistence of the record for which the clerk searched. Although the
clerk's certificate would qualify as an official record under respondent's
definition — it was prepared by a public officer in the regular course of
his official duties — and although the clerk was certainly not a
"conventional witness" under the dissent's approach, the clerk was
nonetheless subject to confrontation. See People v. Bromwich, 200 N. Y. 385,
388-389, 93 N. E. 933, 934 (1911); People v. Goodrode, 132 Mich. 542, 547,
94 N. W. 14, 16 (1903); Wigmore, supra, § 1678.[fn9]

[*324] Respondent also misunderstands the relationship between the
business-and-official-records hearsay exceptions and the Confrontation
Clause. [12][13] As we stated in Crawford: "Most of the hearsay exceptions covered
statements that by their nature were not testimonial — for example, business
records or statements in furtherance of a conspiracy." 541 U. S., at 56.
Business and public records are generally admissible absent confrontation
not because they qualify under an exception to the hearsay rules, but
because — having been created for the administration of an entity's affairs
and not for [**2540] the purpose of establishing or proving some fact at trial — they
are not testimonial. Whether or not they qualify as business or official
records, the analysts' statements here — prepared specifically for use at
petitioner's trial — were testimony [***330] against petitioner, and the analysts
were subject to confrontation under the Sixth Amendment.

E

[14] Respondent asserts that we should find no Confrontation Clause violation
in this case because petitioner had the ability to subpoena the analysts.
But that power — whether pursuant to state law or the Compulsory Process
Clause — is no substitute for the right of confrontation. [15] Unlike the
Confrontation Clause, those provisions are of no use to the defendant when
the witness is unavailable or simply refuses to appear. See, e. g., Davis,
547 U. S., at 820 ("[The witness] was subpoenaed, but she did not appear at
. . . trial"). Converting the prosecution's duty under the Confrontation
Clause into the defendant's privilege under state law or the Compulsory
Process Clause shifts the consequences of adverse-witness no-shows from the
State to the accused. [16] More fundamentally, the Confrontation Clause imposes a
burden on the prosecution to present its witnesses, not on the defendant to
bring those adverse witnesses into court. Its value to the defendant is not
replaced by a system in which the prosecution presents its evidence via exparte
affidavits [*325] and waits for the defendant to subpoena the affiants if he
chooses.

F

Finally, respondent asks us to relax the requirements of the Confrontation
Clause to accommodate the "'necessities of trial and the adversary
process.'" Brief for Respondent 59. It is not clear whence we would derive
the authority to do so. [17] The Confrontation Clause may make the prosecution of
criminals [****12] more burdensome, but that is equally true of the right to trial by
jury and the privilege against self-incrimination. The Confrontation Clause
— like those other constitutional provisions — is binding, and we may not
disregard it at our convenience.

We also doubt the accuracy of respondent's and the dissent's dire
predictions. The dissent, respondent, and its amici highlight the
substantial total number of controlled-substance analyses performed by state
and federal laboratories in recent years. But only some of those tests are
implicated in prosecutions, and only a small fraction of those eases
actually proceed to trial. See Brief for Law Professors as Amici Curiae 7-8
(nearly 95% of convictions in state and federal courts are obtained via
guilty plea).[fn10]

Perhaps the best indication that the sky will not fall after today's
decision is that it has not done so already. Many States have already
adopted the constitutional rule we
announce [*326] today,[fn11] while many others [**2541] permit the [***331] defendant to assert (or
forfeit by silence) his Confrontation Clause right after receiving notice of
the prosecution's intent to use a forensic analyst's report, id., at 13-15
(cataloging such state laws). Despite these widespread practices, there is
no evidence that the criminal justice system has ground to a halt in the
States that, one way or another, empower a defendant to insist upon the
analyst's appearance at trial. Indeed, in Massachusetts itself, a defendant
may subpoena the analyst to appear at trial, see Brief for Respondent 57,
and yet there is no indication that obstructionist defendants are abusing
the privilege.

The dissent finds this evidence "far less reassuring than promised." Post,
at 356. But its doubts rest on two flawed premises. First, the dissent
believes that those state statutes "requiring the defendant to give early
notice of his intent to confront the analyst," are "burden-shifting statutes
[that] may be invalidated by the Court's reasoning." Post, at 350, 356. That
is not so. In their simplest form, notice-and-demand statutes require the
prosecution to provide notice to the defendant of its intent to use an
analyst's report as evidence at trial, after which the defendant is given a
period of time in which he may object to the admission of the evidence
absent the analyst's appearance live at trial. See, e.g., Ga. Code Ann. §
35-3-154.1 (2006); Tex. Code Crim. Proc. Ann., Art. 38.41, § 4 (Vernon
2005); Ohio Rev. Code Ann. § 2925.51(C) (Lexis 2006). Contrary to the
dissent's
[*327]
perception, these statutes shift no burden whatever. [18] The defendant always
has the burden of raising his Confrontation Clause objection;
notice-and-demand statutes simply govern the time within which he must do
so. [19] States are free to adopt procedural rules governing objections. See
Wainwright v. Sykes, 433 U. S. 72, 86-87 (1977). It is common to require a
defendant to exercise his rights under the Compulsory Process Clause in
advance of trial, announcing his intent to present certain witnesses. See
Fed. Rules Crim. Proc. 12.1(a), (e),16(b)(1)(C); Comment, Alibi Notice
Rules: The Preclusion Sanction as Procedural Default, 51 U. Chi. L. Rev.
254, 254-255, 281-285 (1984) (discussing and cataloging state
notice-[****13] of-alibi rules); Taylor v. Illinois, 484 U. S. 400, 411 (1988);
Williams v. Florida, 399 U. S. 78, 81-82 (1970). There is no conceivable
reason why he cannot similarly be compelled to exercise his Confrontation
Clause rights before trial. See Hinojos-Mendoza v. People, 169 P. 3d 662,
670 (Colo. 2007) (discussing and approving Colorado's notice-and-demand
provision). Today's decision will not disrupt criminal prosecutions in the
many large States whose practice is already in accord with the Confrontation
Clause.[***332][**2542][fn12]

Second, the dissent notes that several of the state-court cases that have
already adopted this rule did so pursuant to our decision in Crawford, and
not "independently . . . as a matter of state law." Post, at 356. That may
be so. But in
[*328]
assessing the likely practical effects of today's ruling, it is irrelevant
why those courts adopted this rule; it matters only that they did so. It is
true that many of these decisions are recent, but if the dissent's dire
predictions were accurate, and given the large number of drug prosecutions
at the state level, one would have expected immediate and dramatic results.
The absence of such evidence is telling.

But it is not surprising. Defense attorneys and their clients will often
stipulate to the nature of the substance in the ordinary drug case. It is
unlikely that defense counsel will insist on live testimony whose effect
will be merely to high-light rather than cast doubt upon the forensic
analysis. Nor will defense attorneys want to antagonize the judge or jury by
wasting their time with the appearance of a witness whose testimony defense
counsel does not intend to rebut in any fashion.[fn13] The amicus brief
filed by District Attorneys in Support of the Commonwealth in the
Massachusetts Supreme Court case upon which the Appeals Court here relied
said that "it is almost always the case that [analysts' certificates] are
admitted without objection. Generally, defendants do not object to the
admission of drug certificates most likely because there is no benefit to a
defendant from such testimony." Brief for District Attorneys in Support of
the Commonwealth in No. SJC-09320 (Mass.), p. 7 (footnote omitted). Given
these strategic considerations, and in light of the experience in those
States that already provide the same or similar protections to defendants,
there is little reason to believe that our decision today will commence the
parade of horribles respondent and the dissent predict.
[*329]

* * *

This case involves little more than the application of our holding in
Crawford v. Washington, 541 U. S. 36. The Sixth Amendment does not permit
the prosecution to prove its case via ex parte out-of-court affidavits, and
the admission of such evidence against Melendez-Diaz was error.[fn14] We
therefore reverse the judgment of the Appeals Court of Massachusetts [***333] and
remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.[**2543]

[fn1] Contrary to the dissent's suggestion, post, at 332-333, 335-336
(opinion of KENNEDY, J.), we do not hold, and it is not the case, that
anyone whose testimony may be relevant in establishing the chain of custody,
authenticity of the sample, or accuracy of the testing device, must appear
in person as part of the prosecution's case. While the dissent is correct
that "[i]t is the obligation of the prosecution to establish the chain of
custody," post, at 335, this does not mean that everyone who laid hands on
the evidence must be called. [20] As stated in the dissent's own quotation,
ibid., from United States v. Lott, 854 F. 2d 244, 250 (CA7 1988), "gaps in
the chain [of custody] normally go to the weight of the evidence rather than
its admissibility." It is up to the prosecution to decide what steps in the
chain of custody are so crucial as to require evidence; but what testimony
is introduced must (if the defendant objects) be introduced live.
Additionally, documents prepared in the regular course of equipment
maintenance may well qualify as nontestimonial records. See infra, at
321-322, 324.

[fn3] The right to confrontation may, of course, be waived, including by
failure to object to the offending evidence; and States may adopt procedural
rules governing the exercise of such objections. See infra, at 327.

[fn4] Respondent cites our decision in Gray v. Maryland, 523 U. S. 185
(1998). That case did indeed distinguish between evidence that is
"incriminating on its face" and evidence that "bec[omes] incriminating . . .
only when linked with evidence introduced later at trial," id., at 191
(internal quotation marks omitted). But it did so for the entirely different
purpose of determining when a nontestifying codefendant's confession,
redacted to remove all mention of the defendant, could be admitted into
evidence with instruction for the jury not to consider the confession as
evidence against the nonconfessor. The very premise of the case was that,
without the limiting instruction even admission of a redacted confession
containing evidence of the latter sort would have violated the defendant's
Sixth Amendment rights. See id., at 190-191.

[fn5] Though surely not always. Some forensic analyses, such as autopsies
and breathalyzer tests, cannot be repeated, and the specimens used for other
analyses have often been lost or degraded.

[fn6] Contrary to the dissent's suggestion, post, at 351, we do not "rel[y]
in such great measure" on the deficiencies of crime-lab analysts shown by
this report to resolve the constitutional question presented in this case.
The analysts who swore the affidavits provided testimony against
Melendez-Diaz, and they are therefore subject to confrontation; we would
reach the same conclusion if all analysts always possessed the scientific
acumen of Mme. Curie and the veracity of Mother Teresa. We discuss the
report only to refute the suggestion that this category of evidence is
uniquely reliable and that cross-examination of the analysts would be an
empty formalism.

[fn8] The dissent's reliance on our decision in Dowdell v. United States,
221 U. S. 325 (1911), see post, at 348-349, is similarly misplaced. As the
opinion stated in Dowdell — and as this Court noted in Davis v. Washington,
547 U. S. 813, 825 (2006) — the judge and clerk who made the statements at
issue in Dowdell were not witnesses for purposes of the Confrontation Clause
because their statements concerned only the conduct of defendants' prior
trial, not any facts regarding defendants' guilt or innocence.
221 U. S., at 330-331.

[fn9] An earlier line of 19th-century state-court cases also supports the
notion that forensic analysts' certificates were not admitted into evidence
as public or business records. See Commonwealth v. Waite, 93 Mass. 264, 266
(1865); Shivers v. Newton, 45 N. J. L. 469, 476 (Sup. Ct. 1883); State v.Campbell, 64 N. H. 402, 403, 13 A. 585, 586 (1888). In all three cases,
defendants — who were prosecuted for selling adulterated milk — objected to
the admission of the state chemists' certificates of analysis. In all three
cases, the objection was defeated because the chemist testified live at
trial. That the prosecution came forward with live witnesses in all three
cases suggests doubt as to the admissibility of the certificates without
opportunity for cross-examination.

[fn10] The dissent provides some back-of-the-envelope calculations regarding
the number of court appearances that will result from today's ruling. Post,
at 342. Those numbers rely on various unfounded assumptions: that the
prosecution will place into evidence a drug analysis certificate in every
case; that the defendant will never stipulate to the nature of the
controlled substance; that even where no such stipulation is made, every
defendant will object to the evidence or otherwise demand the appearance of
the analyst. These assumptions are wildly unrealistic, and, as discussed
below, the figures they produce do not reflect what has in fact occurred in
those jurisdictions that have already adopted the rule we announce today.

[fn12] As the dissent notes, post, at 355, some state statutes, "requir[e]
defense counsel to subpoena the analyst, to show good cause for demanding
the analyst's presence, or even to affirm under oath an intent to
cross-examine the analyst." We have no occasion today to pass on the
constitutionality of every variety of statute commonly given the
notice-and-demand label. It suffices to say that what we have referred to as
the "simplest form [of] notice-and-demand statutes," supra, at 326, is
constitutional; that such provisions are in place in a number of States; and
that in those States, and in other States that require confrontation without
notice-and-demand, there is no indication that the dire consequences
predicted by the dissent have materialized.

[fn13] Contrary to the dissent's suggestion, post, at 352-353, we do not
cast aspersions on trial judges, who we trust will not be antagonized by
good-faith requests for analysts' appearance at trial. Nor do we expect
defense attorneys to refrain from zealous representation of their clients.
We simply do not expect defense attorneys to believe that their clients'
interests (or their own) are furthered by objections to analysts' reports
whose conclusions counsel have no intention of challenging.

[fn14] We of course express no view as to whether the error was harmless.
The Appeals Court of Massachusetts did not reach that question, and we
decline to address it in the first instance. Cf. Coy v. Iowa,
487 U. S. 1012, 1021-1022 (1988). In connection with that determination,
however, we disagree with the dissent's contention, post, at 353, that "only
an analyst's testimony suffices to prove [the] fact" that "the substance is
cocaine." Today's opinion, while insisting upon retention of the
confrontation requirement, in no way alters the type of evidence (including
circumstantial evidence) sufficient to sustain a conviction.

JUSTICE THOMAS, concurring.

I write separately to note that I continue to adhere to my position that
"the Confrontation Clause is implicated by extrajudicial statements only
insofar as they are contained in formalized testimonial materials, such as
affidavits, [****14] depositions, prior testimony, or confessions." White v.Illinois, 502 U. S. 346, 365 (1992) (opinion concurring in part and
concurring in judgment); see also Giles v. California, 554 U. S. 353, 378
(2008) (concurring opinion) (characterizing statements within the scope of
the Confrontation Clause to include those that are "sufficiently formal to
resemble the Marian examinations" because they were Mirandized or custodial
or "accompanied by [a] similar indicia of formality" (internal quotation
marks omitted)); Davis v. Washington, 547 U. S. 813, 836 (2006) (opinion
concurring in judgment in part and dissenting in part) (reiterating that the
Clause encompasses
[*330]
extrajudicial statements contained in the types of formalized materials
listed in White, supra, at 365 (opinion of THOMAS, J.)). I join the Court's
opinion in this case because the documents at issue in this case "are quite
plainly affidavits," ante, at 310. As such, they "fall within the core class
of testimonial statements" governed by the Confrontation Clause. Ibid.
(internal quotation marks omitted).

The Court sweeps away an accepted rule governing the admission of
scientific evidence. Until today, scientific analysis could be introduced
into evidence without testimony from the "analyst" who produced it. This
rule has been established for at least 90 years. It extends across at least
35 States and six Federal Courts of Appeals. Yet the Court undoes it based
on two recent opinions that say nothing about forensic analysts: Crawford v.Washington, 541 U. S. 36 (2004), and Davis v. Washington, 547 U. S. 813
(2006).

It is remarkable that the Court so confidently disregards a century of
jurisprudence. We learn now that we have misinterpreted the Confrontation
Clause — hardly an arcane or seldom-used provision of the Constitution — for
the first 218 years of its existence. The immediate systemic concern is that
the Court makes no attempt to acknowledge the real differences between
laboratory analysts who perform scientific tests and other, more
conventional witnesses — "witnesses" being the word the Framers used in the
Confrontation Clause.
[***334]

Crawford and Davis dealt with ordinary witnesses — women who had seen, and
in two cases been the victim of, the crime in question. Those cases stand
for the proposition that formal statements made by a conventional witness —
one who has personal knowledge of some aspect of the defendant's guilt — may
not be admitted without the witness appearing at trial to meet the accused
face to face. But
[*331]Crawford and Davis do not say — indeed, could not have said, because the
facts were not before the Court — that anyone who makes a testimonial
statement is a witness for purposes of the Confrontation Clause, even when
that person has, in fact, witnessed nothing to give them personal knowledge
of the defendant's guilt.

Because Crawford and Davis concerned typical witnesses, the Court should
have done the sensible thing and limited its holding to witnesses as so
defined. Indeed, as JUSTICE THOMAS warned in his opinion in Davis, the
Court's approach has [**2544] become "disconnected [****15] from history and unnecessary to
prevent abuse." 547 U. S., at 838 (opinion concurring in judgment in part
and dissenting in part). The Court's reliance on the word "testimonial" is
of little help, of course, for that word does not appear in the text of the
Clause.

The Court dictates to the States, as a matter of constitutional law, an
as-yet-undefined set of rules governing what kinds of evidence may be
admitted without in-court testimony. Indeed, under today's opinion the
States bear an even more onerous burden than they did before Crawford.[21] Then,
the States at least had the guidance of the hearsay rule and could rest
assured that "where the evidence f[ell] within a firmly rooted hearsay
exception," the Confrontation Clause did not bar its admission. Ohio v.Roberts, 448 U. S. 56, 66 (1980) (overruled by Crawford). Now, without
guidance from any established body of law, the States can only guess what
future rules this Court will distill from the sparse constitutional text.
See, e. g., Mendez, Crawford v. Washington: A Critique, 57 Stan. L. Rev.
569, 586-593 (2004) (discussing unanswered questions regarding testimonial
statements).

The Court's opinion suggests this will be a body of formalistic and wooden
rules, divorced from precedent, common sense, and the underlying purpose of
the Clause. Its ruling has vast potential to disrupt criminal procedures
that already give ample protections against the misuse of scientific
[*332]
evidence. For these reasons, as more fully explained below, the Court's
opinion elicits my respectful dissent.

I

A

1

The Court says that, before the results of a scientific test may be
introduced into evidence, the defendant has the right to confront the
"analysts." Ante, at 310-311. One must assume that this term, though it
appears nowhere in the Confrontation Clause, nevertheless has some
constitutional substance that now must be elaborated in future cases. There
is no accepted definition of analyst, and there is no established precedent
to define that term.

Consider how many people play a role in a routine test for the presence of
illegal drugs. One person prepares a sample of the drug, places it in a
[***335] testing machine, and retrieves the machine's printout — often, a graph
showing the frequencies of radiation absorbed by the sample or the masses of
the sample's molecular fragments. See 2 P. Giannelli & E. Imwinkelried,
Scientific Evidence § 23.03 (4th ed. 2007) (describing common methods of
identifying drugs, including infrared spectrophotometry, nuclear magnetic
resonance, gas chromatography, and mass spectrometry). A second person
interprets the graph the machine prints out — perhaps by comparing that
printout with published, standardized graphs of known drugs. Ibid.
Meanwhile, a third person — perhaps an independent contractor — has
calibrated the machine and, having done so, has certified that the machine
is in good working order. Finally, a fourth person — perhaps the
laboratory's director — certifies that his subordinates followed established
procedures.

It is not at all evident which of these four persons is the analyst to be
confronted under the rule the Court announces today. If all are witnesses
who must appear for in-court confrontation, [****16] then the Court has, for all
practical purposes,
[*333]
forbidden the use of scientific tests in criminal trials. As discussed
further below, requiring even one of these individuals to testify threatens
to disrupt if not end [**2545] many prosecutions where guilt is clear but a newly
found formalism now holds sway. See Part I-C, infra.

It is possible to read the Court's opinion, however, to say that all four
must testify. Each one has contributed to the test's result and has, at
least in some respects, made a representation about the test. Person One
represents that a pure sample, properly drawn, entered the machine and
produced a particular printout. Person Two represents that the printout
corresponds to a known drug. Person Three represents that the machine was
properly calibrated at the time. Person Four represents that all the others
performed their jobs in accord with established procedures.

And each of the four has power to introduce error. A laboratory technician
might adulterate the sample. The independent contractor might botch the
machine's calibration. And so forth. The reasons for these errors may range
from animus against the particular suspect or all criminal suspects to
unintentional oversight; from gross negligence to good-faith mistake. It is
no surprise that a plausible case can be made for deeming each person in the
testing process an analyst under the Court's opinion.

Consider the independent contractor who has calibrated the testing
machine. At least in a routine case, where the machine's result appears
unmistakable, that result's accuracy depends entirely on the machine's
calibration. The calibration, in turn, can be proved only by the
contractor's certification that he or she did the job properly. That
certification appears to be a testimonial statement under the Court's
definition: It is a formal, out-of-court statement, offered for the truth of
the matter asserted, and made for the purpose of later prosecution. See
ante, at 309-311. It is not clear, under the Court's ruling, why the
independent contractor is not also an analyst.
[*334]

Consider the person who interprets the machine's printout. His or her
interpretation may call for the exercise of professional judgment in close
cases. See Giannelli & Imwinkelried, supra. If we assume no person
deliberately [***336] introduces error, this interpretive step is the one most likely
to permit human error to affect the test's result. This exercise of judgment
might make this participant an analyst. The Court implies as much. See ante,
at 318-320.

And we must yet consider the laboratory director who certifies the
ultimate results. The director is arguably the most effective person to
confront for revealing any ambiguity in findings, variations in procedures,
or problems in the office, as he or she is most familiar with the standard
procedures, the office's variations, and problems in prior cases or with
particular analysts. The prosecution may seek to introduce his or her
certification into evidence. The Court implies that only those statements
that are actually entered into evidence require [****17] confrontation. See ante, at
309. This could mean that the director is also an analyst, even if his or
her certification relies upon or restates work performed by subordinates.

The Court offers no principles or historical precedent to determine which
of these persons is the analyst. All contribute to the test result. And each
is equally remote from the scene, has no personal stake in the outcome, does
not even know the accused, and is concerned only with the performance of his
or her role in conducting the test.

It could be argued that the only analyst who must testify is the person
who signed the certificate. Under this view, a laboratory could have one
employee sign certificates and appear in court, which would [**2546] spare all the
other analysts this burden. But the Court has already rejected this
arrangement. The Court made clear in Davis that it will not permit the
testimonial statement of one witness to enter into evidence through the
in-court testimony of a second:
[*335]

"[W]e do not think it conceivable that the protections of the
Confrontation Clause can readily be evaded by having a note-taking
policeman [here, the laboratory employee who signs the certificate]
recite the unsworn hearsay testimony of the declarant [here, the
analyst who performs the actual test], instead of having the
declarant sign a deposition. Indeed, if there is one point for which
no case — English or early American, state or federal — can be
cited, that is it." 547 U. S., at 826.

Under this logic, the Court's holding cannot be cabined to the person who
signs the certificates. If the signatory is restating the testimonial
statements of the true analysts — whoever they might be — then those
analysts, too, must testify in person.

Today's decision demonstrates that even in the narrow category of
scientific tests that identify a drug, the Court cannot define with any
clarity who the analyst is. Outside this narrow category, the range of other
scientific tests that may be affected by the Court's new confrontation right
is staggering. See, e. g., Comment, Toward a Definition of "Testimonial":
How Autopsy Reports Do Not Embody the Qualities of a Testimonial Statement,
96 Cal. L. Rev. 1093, 1094, 1115 (2008) (noting that every court
post-Craw/ord has held that autopsy reports are not testimonial, and warning
that a contrary rule would "effectively functio[n] as a statute of
limitations for murder").
[***337]

2

It is difficult to confine at this point the damage the Court's holding
will do in other contexts. Consider just two — establishing the chain of
custody and authenticating a copy of a document.

It is the obligation of the prosecution to establish the chain of custody
for evidence sent to testing laboratories — that is, to establish "the
identity and integrity of physical evidence
[*336]
by tracing its continuous whereabouts." 23 C. J. S., Criminal Law § 1142, p.
66 (2006). Meeting this obligation requires representations — that one
officer retrieved the evidence from the crime scene, that a second officer
checked it into an evidence locker, that a third officer verified the
locker's seal was intact, and so forth. The iron logic of which the [****18] Court is
so enamored would seem to require in-court testimony from each human link in
the chain of custody. That, of course, has never been the law. See, e. g,United States v. Lott, 854 F. 2d 244, 250 (CA7 1988) ("[G]aps in the chain
[of custody] normally go to the weight of the evidence rather than its
admissibility"); 29A Am. Jur. 2d, Evidence § 962, p. 269 (2008) ("The fact
that one of the persons in control of a fungible substance does not testify
at trial does not, without more, make the substance or testimony relating to
it inadmissible"); 23 C. J. S., supra, § 1142, at 67 ("It is generally not
necessary that every witness who handled the evidence testify").

It is no answer for the Court to say that "[i]t is up to the prosecution
to decide what steps in the chain of custody are so crucial as to require
evidence." Ante, at 311, n. 1. The case itself determines which links in the
chain are crucial — not the prosecution. In any number of cases, the crucial
link in the chain will not be available to testify, and so the evidence will
be excluded for lack of a proper foundation.

Consider another context in which the Court's holding may cause
disruption: The [**2547] long-accepted practice of authenticating copies of documents
by means of a certificate from the document's custodian stating that the
copy is accurate. See, e.g., Fed. Rule Evid. 902(4) (in order to be
self-authenticating, a copy of a public record must be "certified as correct
by the custodian"); Rule 902(11) (business record must be "accompanied by a
written declaration of its custodian"). Under one possible reading of the
Court's opinion, recordkeepers will be required to testify. So far, courts
have not read Crawford and Davis to impose this largely
[*337]
meaningless requirement. See, e. g., United States v. Adefehinti,
510 F. 3d 319, 327-328 (CADC 2008) (certificates authenticating bank records
may be admitted without confrontation); United States v. Ellis,
460 F. 3d 920, 927 (CA7 2006) (certificate authenticating hospital records).
But the breadth of the Court's ruling today, and its undefined scope, may
well be such that these courts now must be deemed to have erred. The risk of
that consequence ought to tell us that something is very wrong with the
Court's analysis.

Because the Court is driven by nothing more than a wooden application of
the Crawford and Davis definition of "testimonial," divorced from any
guidance from history, precedent, or common sense, there is no way to
predict the future applications of today's holding. Surely part of the
justification [***338] for the Court's formalism must lie in its predictability.
There is nothing predictable here, however, other than the uncertainty and
disruption that now must ensue.

B

With no precedent to guide us, let us assume that the Court's analyst is
the person who interprets the machine's printout. This result makes no
sense. The Confrontation Clause is not designed, and does not serve, to
detect errors in scientific tests. That should instead be done by conducting
a new test. Or, if a new test is impossible, the defendant may call his own
expert to explain to the jury the test's flaws and the dangers of relying on
it. And if, in an extraordinary case, the particular analyst's testimony is
necessary to the defense, then, [****19] of course, the defendant may subpoena the
analyst. The Court frets that the defendant may be unable to do so "when the
[analyst] is unavailable or simply refuses to appear." Ante, at 324. But
laboratory analysts are not difficult to locate or to compel. As discussed
below, analysts already devote considerable time to appearing in court when
subpoenaed to do so. See Part I-C, infra; see also Brief for State of
Alabama et al. as Amid Curiae 26-28. Neither the
[*338]
Court, petitioner, nor amid offer any reason to believe that defendants have
trouble subpoenaing analysts in cases where the analysts' in-court testimony
is necessary.

The facts of this case illustrate the formalistic and pointless nature of
the Court's reading of the Clause. Petitioner knew, well in advance of
trial, that the Commonwealth would introduce the tests against him. The bags
of cocaine were in court, available for him to test, and entered into
evidence. Yet petitioner made no effort, before or during trial, to mount a
defense against the analysts' results. Petitioner could have challenged the
tests' reliability by seeking discovery concerning the testing methods used
or the qualifications of the laboratory analysts. See Mass. Rule Crim. Proc.
14(a)(2) (2009). He did not do so. Petitioner could have sought to conduct
his own test. See Rule 41. Again, he did not seek a test; indeed, he did not
argue that the drug was not cocaine. Rather than dispute the authenticity of
the samples tested or the accuracy of the tests performed, petitioner argued
to the jury [**2548] that the prosecution had not shown that he had possessed or
dealt in the drugs.

Despite not having prepared a defense to the analysts' results,
petitioner's counsel made what can only be described as a pro forma
objection to admitting the results without in-court testimony, presumably
from one particular analyst. Today the Court, by deciding that this
objection should have been sustained, transforms the Confrontation Clause
from a sensible procedural protection into a distortion of the criminal
justice system.

It is difficult to perceive how the Court's holding will advance the
purposes of the Confrontation Clause. One purpose of confrontation is to
impress upon witnesses the gravity of their conduct. See Coy v. Iowa,
487 U. S. 1012, 1019-1020 (1988). A witness, when brought to face the person
his or her words condemn, might refine, reformulate, reconsider, or even
recant earlier statements. See ibid. A further purpose is to alleviate the
danger of one-sided
interrogations [*339] by adversarial government officials who might distort a
witness' testimony. The Clause guards against this danger by [***339] bringing the
interrogation into the more neutral and public forum of the courtroom. See
Maryland v. Craig, 497 U. S. 836, 869-870 (1990) (SCALIA, J., dissenting)
(discussing the "value of the confrontation right in guarding against a
child's distorted or coerced recollections"); see also Comment, 96 Cal. L.
Rev., at 1120-1122 ("During private law-enforcement questioning, police
officers or prosecutors can exert pressure on the witness without a high
risk of being discovered. Courtroom questioning, in contrast, is public and
performed [****20] in front of the jury, judge and defendant. Pressure is therefore
harder to exert in court").

But neither purpose is served by the rule the Court announces today. It is
not plausible that a laboratory analyst will retract his or her prior
conclusion upon catching sight of the defendant the result condemns. After
all, the analyst is far removed from the particular defendant and, indeed,
claims no personal knowledge of the defendant's guilt. And an analyst
performs hundreds if not thousands of tests each year and will not remember
a particular test or the link it had to the defendant.

This is not to say that analysts are infallible. They are not. It may well
be that if the State does not introduce the machine printout or the raw
results of a laboratory analysis; if it does not call an expert to interpret
a test, particularly if that test is complex or little known; if it does not
establish the chain of custody and the reliability of the laboratory; then
the State will have failed to meet its burden of proof. That result follows
because the State must prove its case beyond a reasonable doubt, without
relying on presumptions, unreliable hearsay, and the like. See United Statesv. United States Gypsum Co., 438 U. S. 422, 446 (1978) (refusing to permit a
"'conclusive presumption [of intent],'" which" Vould effectively eliminate
intent as an ingredient of the offense'" (quoting Morissette v. UnitedStates, 342 U.S. 246, 275 ([*340] 1952))). The
State must permit the defendant to challenge the analyst's result. See
Holmes v. South Carolina, 547 U. S. 319, 331 (2006) (affirming the
defendant's right to "have a meaningful opportunity to present a complete
defense" (internal quotation marks omitted)). The rules of evidence,
including those governing reliability under hearsay principles and the
latitude to be given expert witnesses; the rules against irrebutable
presumptions; and the overriding principle that the prosecution must make
[**2549] its case beyond a reasonable doubt — all these are part of the protections
for the accused. The States, however, have some latitude in determining how
these rules should be defined.

The Confrontation Clause addresses who must testify. It simply does not
follow, however, that this clause, in lieu of the other rules set forth
above, controls who the prosecution must call on every issue. Suppose, for
instance, that the defense challenges the procedures for a secure chain of
custody for evidence sent to a laboratory and then returned to the police.
The defense has the right to call its own witnesses to show that the chain
of custody is not secure. But that does not mean it can demand that, in the
prosecution's case in chief, each person who is in the chain of custody —
and who had an undoubted opportunity to taint or tamper with the evidence —
must be called by the prosecution [***340] under the Confrontation Clause. And the
same is true with laboratory technicians.

The Confrontation Clause is simply not needed for these matters. Where, as
here, the defendant does not even dispute the accuracy of the analyst's
work, confrontation adds nothing.

C

For the sake of these negligible benefits, the Court threatens to disrupt
forensic [****21] investigations across the country and to put prosecutions
nationwide at risk of dismissal based on erratic, all-too-frequent instances
when a particular laboratory technician, now invested by the Court's new
constitutional [*341] designation as the analyst, simply does not or cannot appear.

Consider first the costs today's decision imposes on criminal trials. Our
own Court enjoys weeks, often months, of notice before cases are argued. We
receive briefs well in advance. The argument itself is ordered. A busy trial
court, by contrast, must consider not only attorneys' schedules but also
those of witnesses and juries. Trial courts have huge caseloads to be
processed within strict time limits. Some cases may unexpectedly plead out
at the last minute; others, just as unexpectedly, may not. Some juries stay
out longer than predicted; others must be reconstituted. An analyst cannot
hope to be the trial court's top priority in scheduling. The analyst must
instead face the prospect of waiting for days in a hallway outside the
courtroom before being called to offer testimony that will consist of little
more than a rote recital of the written report. See Part I-B, supra.

As matters stood before today's opinion, analysts already spent
considerable time appearing as witnesses in those few cases where the
defendant, unlike petitioner in this case, contested the analyst's result
and subpoenaed the analyst. See Brief for State of Alabama et al. as AmidCuriae 26-28 (testifying takes time); ante, at 328 (before today's opinion,
it was "'almost always the case that [analysts' certificates] [we]re
admitted without objection'" in Massachusetts courts). By requiring analysts
also to appear in the far greater number of cases where defendants do not
dispute the analyst's result, the Court imposes enormous costs on the
administration of justice.

Setting aside, for a moment, all the other crimes for which scientific
evidence is required, consider the costs the Court's ruling will impose on
state drug prosecutions alone. In 2004, the most recent year for which data
are available, drug possession and trafficking resulted in 362, 850 felony
convictions in state courts across the country. See Dept. of Justice, Bureau
of Justice Statistics, M. Durose & P. Langan,
[*342]
Felony Sentences in State Courts, 2004, p. 2 (July 2007). Roughly 95% of
those convictions were products of plea [**2550] bar-gains, see id., at 1, which
means that state courts saw more than 18,000 drug trials in a single year.

The analysts responsible for testing the drugs at issue in those cases now
bear a crushing burden. For example, the district attorney in Philadelphia
prosecuted 25,000 drug crimes in 2007. Brief for National Dist. Attorneys
Association et al. as Amici Curiae 12-13. Assuming that number remains the
same, and assuming that 95% of the cases end in a plea bargain, each of the
city's 18 drug analysts, ibid., will be required to testify in more than 69
trials next year. [***341] Cleveland's district attorney prosecuted 14,000 drug
crimes in 2007. Ibid. Assuming that number holds, and that 95% of the cases
end in a plea bargain, each of the city's 6 drug [****22] analysts (2 of whom work
only part time) must testify in 117 drug cases next year. Id., at 13.

The Federal Government may face even graver difficulties than the States
because its operations are so widespread. For example, the Federal Bureau of
Investigation (FBI) laboratory at Quantico, Virginia, supports federal,
state, and local investigations across the country. Its 500 employees
conduct over 1 million scientific tests each year. Dept. of Justice, FBI
Laboratory 2007, Message from the FBI Laboratory Director,
http://www.fbi.gov/hq/lab/lab2007/labannua107.pdf (as visited June 22, 2009,
and available in Clerk of Court's case file). The Court's decision means
that before any of those million tests reaches a jury, at least one of the
laboratory's analysts must board a plane, find his or her way to an
unfamiliar courthouse, and sit there waiting to read aloud notes made months
ago.

The Court purchases its meddling with the Confrontation Clause at a dear
price, a price not measured in taxpayer dollars alone. Guilty defendants
will go free, on the most technical grounds, as a direct result of today's
decision, adding nothing to the truth-finding process. The analyst will
[*343]
not always make it to the courthouse in time. He or she may be ill; may be
out of the country; may be unable to travel because of inclement weather; or
may at that very moment be waiting outside some other courtroom for another
defendant to exercise the right the Court invents today. If for any reason
the analyst cannot make it to the courthouse in time, then, the Court holds,
the jury cannot learn of the analyst's findings (unless, by some unlikely
turn of events, the defendant previously cross-examined the analyst). Ante,
at 309. The result, in many cases, will be that the prosecution cannot meet
its burden of proof, and the guilty defendant goes free on a technicality
that, because it results in an acquittal, cannot be reviewed on appeal.

The Court's holding is a windfall to defendants, one that is unjustified
by any demonstrated deficiency in trials, any well-understood historical
requirement, or any established constitutional precedent.

II

All of the problems with today's decision — the imprecise definition of
"analyst," the lack of any perceptible benefit, the heavy societal costs —
would be of no moment if the Constitution did, in fact, require the Court to
rule as it does today. But the Constitution does not.

The Court's fundamental mistake is to read the Confrontation Clause as
referring to a kind of out-of-court statement — namely, a testimonial
statement — that must be excluded from evidence. The Clause does not refer
to kinds of statements. Nor does the Clause contain the word "testimonial."
The text, instead, refers to kinds of persons, namely, to "witnesses
against" the defendant. Laboratory analysts are not "witnesses against" the
defendant as those [**2551] words would have been understood at the framing. There is
simply no authority for this proposition.

Instead, the Clause refers to a conventional "witness" — meaning one who
witnesses (that is, perceives) an [***342] event that gives him or her personal
knowledge of some aspect of the
[*344]
defendant'[****23] s guilt. Both Crawford and Davis concerned just this kind of
ordinary witness — and nothing in the Confrontation Clause's text, history,
or precedent justifies the Court's decision to expand those cases.

A

The Clause states: "In all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him." U. S.
Const., Amdt. 6. Though there is "virtually no evidence of what the drafters
of the Confrontation Clause intended it to mean," White v. Illinois,
502 U. S. 346, 359 (1992) (THOMAS, J., concurring in part and concurring in
judgment), it is certain the Framers did not contemplate that an analyst who
conducts a scientific test far removed from the crime would be considered a
"witnes[s] against" the defendant.

The Framers were concerned with a typical witness — one who perceived an
event that gave rise to a personal belief in some aspect of the defendant's
guilt. There is no evidence that the Framers understood the Clause to extend
to unconventional witnesses. As discussed below, there is significant
evidence to the contrary. See Part II-B, infra. In these circumstances, the
historical evidence in support of the Court's position is "'too meager . . .
to form a solid basis in history, preceding and contemporaneous with the
framing of the Constitution.'" Boumediene v. Bush, 553 U. S. 723, 752 (2008)
(quoting Reid v. Covert, 354 U. S. 1, 64 (1957) (Frankfurter, J., concurring
in result)). The Court goes dangerously wrong when it bases its
constitutional interpretation upon historical guesswork.

The infamous treason trial of Sir Walter Raleigh provides excellent
examples of the kinds of witnesses to whom the Confrontation Clause refers.
Raleigh's Case, 2 How. St. Tr. 1 (1603); see Crawford, 541 U. S., at 44-45
(Raleigh's trial informs our understanding of the Clause because it was, at
the time of the framing, one of the "most notorious in
stances" [*345] of the abuse of witnesses' out-of-court statements); ante, at 315
(same). Raleigh's accusers claimed to have heard Raleigh speak treason, so
they were witnesses in the conventional sense. We should limit the
Confrontation Clause to witnesses like those in Raleigh's trial.

The Court today expands the Clause to include laboratory analysts, but
analysts differ from ordinary witnesses in at least three significant ways.
First, a conventional witness recalls events observed in the past, while an
analyst's report contains near-contemporaneous observations of the test. An
observation recorded at the time it is made is unlike the usual act of
testifying. A typical witness must recall a previous event that he or she
perceived just once, and thus may have misperceived or misremembered. But an
analyst making a contemporaneous observation need not rely on memory; he or
she instead reports the observations at the time they are made. We gave this
consideration substantial weight in Davis. There, the "primary purpose" of
the victim's 911 call was "to enable police assistance to meet an ongoing
emergency," rather than "to establish or prove past events potentially
relevant to later criminal prosecution." 547 U. S., at 822[***343] , 827. See [**2552] also
People v. Geier, 41 Cal. 4th 555, 605-609, 161 P. 3d 104, 139-141 (2007).
The Court cites no authority for its holding [****24] that an observation recorded at
the time it is made is an act of "witness[ing]" for purposes of the
Confrontation Clause.

Second, an analyst observes neither the crime nor any human action related
to it. Often, the analyst does not know the defendant's identity, much less
have personal knowledge of an aspect of the defendant's guilt. The analyst's
distance from the crime and the defendant, in both space and time, suggests
the analyst is not a witness against the defendant in the conventional
sense.

Third, a conventional witness responds to questions under interrogation.
See, e.g., Raleigh's Case, supra, at 15-20. But laboratory tests are
conducted according to scientific
[*346]
protocols; they are not dependent upon or controlled by interrogation of any
sort. Put differently, out-of-court statements should only "require
confrontation if they are produced by, or with the involvement of,
adversarial government officials responsible for investigating and
prosecuting crime." Comment, 96 Cal. L. Rev., at 1118. There is no
indication that the analysts here — who work for the State Laboratory
Institute, a division of the Massachusetts Department of Public Health —
were adversarial to petitioner. Nor is there any evidence that adversarial
officials played a role in formulating the analysts' certificates.

Rather than acknowledge that it expands the Confrontation Clause beyond
conventional witnesses, the Court relies on our recent opinions in Crawford
and Davis. Ante, at 309-311. The Court assumes, with little analysis, that
Crawford and Davis extended the Clause to any person who makes a
"testimonial" statement. But the Court's confident tone cannot disguise the
thinness of these two reeds. Neither Crawford nor Davis considered whether
the Clause extends to persons far removed from the crime who have no
connection to the defendant. Instead, those cases concerned conventional
witnesses. Davis, supra, at 826-830 (witnesses were victims of defendants'
assaults); Crawford, supra, at 38 (witness saw defendant stab victim).

It is true that Crawford and Davis employed the term "testimonial," and
thereby suggested that any testimonial statement, by any person, no matter
how distant from the defendant and the crime, is subject to the
Confrontation Clause. But that suggestion was not part of the holding of
Crawford or Davis. Those opinions used the adjective "testimonial" to avoid
the awkward phrasing required by reusing the noun "witness." The Court today
transforms that turn of phrase into a new and sweeping legal rule, by
holding that anyone who makes a formal statement for the purpose of later
prosecution — no matter how removed from the crime — must be considered a
"witnes[s] against" the defendant.
[*347]Ante, at 309-311. The Court cites no authority to justify this expansive new
interpretation.

B

No historical evidence supports the Court's conclusion that the
Confrontation Clause was understood to extend beyond conventional witnesses
to include analysts who conduct scientific [***344] tests far removed from the crime
and the defendant. Indeed, what little evidence there is contradicts this
[****25] interpretation.

Though the Framers had no forensic scientists, they did use another kind
of unconventional witness — the copyist. A copyist's work may be as
essential to a criminal prosecution as the forensic analyst's. [**2553] To convict a
man of bigamy, for example, the State often requires his marriage records.
See, e. g., Williams v. State, 54 Ala. 131, 134, 135 (1875); State v.Potter, 52 Vt. 33, 38 (1879). But if the original records cannot be taken
from the archive, the prosecution must rely on copies of those records, made
for the purpose of introducing the copies into evidence at trial. See ibid.
In that case, the copyist's honesty and diligence are just as important as
the analyst's here. If the copyist falsifies a copy, or even misspells a
name or transposes a date, those flaws could lead the jury to convict.
Because so much depends on his or her honesty and diligence, the copyist
often prepares an affidavit certifying that the copy is true and accurate.

Such a certificate is beyond question a testimonial statement under the
Court's definition: It is a formal out-of-court statement offered for the
truth of two matters (the copyist's honesty and the copy's accuracy), and it
is prepared for a criminal prosecution.

During the Framers' era copyists' affidavits were accepted without
hesitation by American courts. See, e.g., United States v. Percheman,
7 Pet. 51, 85 (1833) (opinion for the Court by Marshall, C. J.); see also
Advisory Committee's Note on Fed. Rule Evid. 902(4), 28 U. S. C. App., p.
390 ("The
[*348]
common law . . . recognized the procedure of authenticating copies of public
records by certificate"); 5 J. Wigmore, Evidence § 1677, 1678 (J. Chadbourn
rev. 1974). And courts admitted copyists' affidavits in criminal as well as
civil trials. See Williams, supra; Potter, supra. This demonstrates that the
framing generation, in contrast to the Court today, did not consider the
Confrontation Clause to require in-court confrontation of unconventional
authors of testimonial statements.

The Court attempts to explain away this historical exception to its rule
by noting that a copyist's authority is "narrowly circumscribed." Ante, at
322. But the Court does not explain why that matters, nor, if it does
matter, why laboratory analysts' authority should not also be deemed
"narrowly circumscribed" so that they, too, may be excused from testifying.
And drawing these fine distinctions cannot be squared with the Court's
avowed allegiance to formalism. Determining whether a witness' authority is
"narrowly circumscribed" has nothing to do with Crawford's testimonial
framework. It instead appears much closer to the pre Crawford rule of Ohiov. Roberts, under which a statement could be admitted without testimony if
it "bears adequate indicia of reliability." 448 U. S., at 66 (internal
quotation marks omitted).

In keeping with the traditional understanding of the Confrontation Clause,
this Court in Dowdell v. United States, 221 U. S. 325 (1911), rejected a
challenge to the use of certificates, sworn out by a clerk of court, a trial
judge, and a court reporter, stating that defendants had been present at
trial. Those certificates, like a copyist's [***345] certificate, met every
requirement of the Court's current definition [****26] of "testimonial." In rejecting
the defendants' claim that use of the certificates violated the
Confrontation Clause, the Court in Dowdell explained that the officials who
executed the certificates "were not witnesses against the accused" because
they "were not asked to testify to facts concerning [the defendants']
[*349]
guilt or innocence." Id., at 330. Indeed, as recently as Davis, the Court
reaffirmed Dowdell.547 U. S., at 825.

By insisting that every author of a testimonial statement appear for
confrontation, [**2554] on pain of excluding the statement from evidence, the Court
does violence to the Framers' sensible, and limited, conception of the right
to confront "witnesses against" the defendant.

C

In addition to lacking support in historical practice or in this Court's
precedent, the Court's decision is also contrary to authority extending over
at least 90 years, 35 States, and six Federal Courts of Appeals.

Almost 100 years ago three State Supreme Courts held that their State
Constitutions did not require analysts to testify in court. In a case much
like this one, the Massachusetts Supreme Judicial Court upheld the admission
of a certificate stating that the liquid seized from the defendant contained
alcohol, even though the author of the certificate did not testify.
Commonwealth v. Slavski, 245 Mass. 405, 413, 140 N. E. 465, 467 (1923). The
highest courts in Connecticut and Virginia reached similar conclusions under
their own constitutions. State v. Torello, 103 Conn. 511, 131 A. 429 (1925);
Bracy v. Commonwealth, 119 Va. 867, 89 S. E. 144 (1916). Just two state
courts appear to have read a State Constitution to require a contrary
result. State v. Clark, 1998 MT 221, ¶¶ 18-25, 290 Mont. 479, 484-489,
964 P. 2d 766, 770-772 (laboratory drug report requires confrontation under
Montana's Constitution, which is "[u]nlike its federal counterpart"); Statev. Birchfield, 342 Ore. 624, 157 P. 3d 216 (2007), but see id., at 631-632,
157 P. 3d, at 220 (suggesting that a "typical notice requirement" would be
lawful).

As for the Federal Constitution, before Crawford the authority was
stronger still: The Sixth Amendment does not require analysts to testify in
court. All Federal Courts of
[*350]
Appeals to consider the issue agreed. Sherman v. Scott, 62 F. 3d 136,
139-142 (CA5 1995); Minner v. Kerby, 30 F. 3d 1311, 1313-1315 (CA10 1994);
United States v. Baker, 855 F. 2d 1353, 1359-1360 (CA8 1988); Reardon v.Manson, 806 F. 2d 39 (CA2 1986); Kay v. United States, 255 F. 2d 476,
480-481 (CA4 1958); see also Manocchio v. Moran, 919 F. 2d 770, 777-782
(CA11990) (autopsy report stating cause of victim's death). Some 24 state
courts, and the Court of Appeals for the Armed Forces, were in accord. See
Appendix A, infra. (Some cases cited in the appendixes concern doctors,
coroners, and calibrators rather than laboratory analysts, but their
reasoning is much the same.) Eleven more state courts upheld burden-shifting
statutes that reduce, if not eliminate, the right to confrontation by
requiring the defendant to take affirmative steps prior to trial to summon
the analyst. See ibid. Because these burden-shifting statutes may be
invalidated by the Court's reasoning, these 11 decisions, too, appear
contrary [***346] to today's opinion. See Part III-B, infra. Most of the remaining
States, far from endorsing the Court's view, appear not to have addressed
the question prior to Crawford. Against this weight of authority, the Court
proffers just two cases from intermediate state [****27] courts of appeals. Ante, at
313.

On a practical level, today's ruling would cause less disruption if the
States' hearsay rules had already required analysts to testify. But few
States require this. At least 16 state courts have held that their
evidentiary rules permit scientific test results, calibration certificates,
and the observations of medical personnel to enter evidence without in-court
testimony. See Appendix B, infra. The Federal Courts of Appeals have reached
the same conclusion in applying the federal hearsay rule. United States v.Garnett, 122 F. 3d 1016, 1018-1019 (CA11 1997) (per curiam); United Statesv. Gilbert, 774 F. 2d 962, 965[**2555] (CA9 1985) (per curiam); United States v.Ware, 247 F. 2d 698, 699-700 (CA7 1957); but see United States v. Oates,
560 F. 2d 45, 82 (CA2 1977) ([*351] report
prepared by law enforcement not admissible under public-records or
business-records exceptions to federal hearsay rule).

The modern trend in the state courts has been away from the Court's rule
and toward the admission of scientific test results without testimony —
perhaps because the States have recognized the increasing reliability of
scientific testing. See Appendix B, infra (citing cases from three States
overruling or limiting previous precedents that had adopted the Court's rule
as a matter of state law). It appears that a mere six courts continue to
interpret their States' hearsay laws to require analysts to testify. See
ibid. And, of course, where courts have grounded their decisions in state
law, rather than the Constitution, the legislatures in those States have
had, until now, the power to abrogate the courts' interpretation if the
costs were shown to outweigh the benefits. Today the Court strips that
authority from the States by carving the minority view into the
constitutional text.

State legislatures, and not the Members of this Court, have the authority
to shape the rules of evidence. The Court therefore errs when it relies in
such great measure on the recent report of the National Academy of Sciences.
Ante, at 318-320 (discussing National Research Council of the National
Academies, Strengthening Forensic Science in the United States: A Path
Forward (2009)). That report is not directed to this Court, but rather to
the elected representatives in Congress and the state legislatures, who,
unlike Members of this Court, have the power and competence to determine
whether scientific tests are unreliable and, if so, whether testimony is the
proper solution to the problem.

The Court rejects the well-established understanding — extending across at
least 90 years, 35 States, and six Federal Courts of Appeals — that the
Constitution does not require analysts to testify in court before their
analysis may be introduced into evidence. The only authority on which the
Court can rely is its own speculation on the meaning of the
[*352]
word "testimonial," made in two recent opinions that said nothing about
scientific analysis or scientific analysts.
[***347]

III

In an attempt to show that the "sky will not fall after today's decision,"
ante, at 325, the Court makes three arguments, none of which withstands
scrutiny.

A

In an [****28] unconvincing effort to play down the threat that today's new rule
will disrupt or even end criminal prosecutions, the Court professes a hope
that defense counsel will decline to raise what will soon be known as the
MelendezDiaz objection. Ante, at 328. The Court bases this expectation on
its understanding that defense attorneys surrender constitutional rights
because the attorneys do not "want to antagonize the judge or jury by
wasting their time." Ibid.

The Court's reasoning is troubling on at least two levels. First, the
Court's speculation rests on the apparent belief that our Nation's trial
judges and jurors are unwilling to accept zealous advocacy and that, once
"antagonize[d]" by it, will punish such advocates with adverse rulings.
Ibid. The Court offers no support for this stunning slur on the integrity of
the Nation's courts. It is commonplace for the defense to request, at the
conclusion of the prosecution's opening case, a directed verdict of
[**2556] acquittal. If the prosecution has failed to prove an element of the crime —
even an element that is technical and rather obvious, such as movement of a
car in interstate commerce — then the case must be dismissed. Until today
one would not have thought that judges should be angered at the defense for
making such motions, nor that counsel has some sort of obligation to avoid
being troublesome when the prosecution has not done all the law requires to
prove its case.

Second, even if the Court were right to expect trial judges to feel
"antagonize[d]" by Melendez-Diaz objections and to
[*353]
then vent their anger by punishing the lawyer in some way, there is no
authority to support the Court's suggestion that a lawyer may shirk his or
her professional duties just to avoid judicial displeasure. There is good
reason why the Court cites no authority for this suggestion — it is contrary
to what some of us, at least, have long understood to be defense counsel's
duty to be a zealous advocate for every client. This Court has recognized
the bedrock principle that a competent criminal defense lawyer must put the
prosecution to its proof:

"[T]he adversarial process protected by the Sixth Amendment
requires that the accused have 'counsel acting in the role of an
advocate.' Anders v. California, 386 U. S. 738, 743 (1967). The
right to the effective assistance of counsel is thus the right of
the accused to require the prosecution's case to survive the
crucible of meaningful adversarial testing. When a true adversarial
criminal trial has been conducted . . . the kind of testing
envisioned by the Sixth Amendment has occurred. But if the process
loses its character as a confrontation between adversaries, the
constitutional guarantee is violated." United States v. Cronic,
466 U. S. 648, 656-657 (1984) (footnotes omitted).

See also ABA Model Code of Professional Responsibility, Canon 7-1, in ABA
Compendium of Professional Responsibility Rules and Standards ([***348] 2008) ("The
duty of a lawyer, both to his client and to the legal system, is to
represent his client zealously within the bounds of the law . . ."
(footnotes omitted)).

The instant case demonstrates how zealous defense counsel will [****29] defend
their clients. To convict, the prosecution must prove the substance is
cocaine. Under the Court's new rule, apparently only an analyst's testimony
suffices to prove that fact. (Of course there will also be a large universe
of other crimes, ranging from homicide to robbery, where scientific
[*354]
evidence is necessary to prove an element.) In cases where scientific
evidence is necessary to prove an element of the crime, the Court's rule
requires the prosecution to call the person identified as the analyst; this
requirement has become a new prosecutorial duty linked with proving the
State's case beyond a reasonable doubt. Unless the Court is ashamed of its
new rule, it is inexplicable that the Court seeks to limit its damage by
hoping that defense counsel will be derelict in their duty to insist that
the prosecution prove its case. That is simply not the way the adversarial
system works.

In any event, the Court's hope is sure to prove unfounded. The Court
surmises that "[i]t is unlikely that defense counsel will insist on live
testimony whose effect will be merely to highlight rather than cast doubt
upon the forensic analysis." Ante, at 328. This optimistic prediction
misunderstands how criminal trials work. If the defense does not plan to
challenge the test result, "highlight[ing]" that result through testimony
does not harm the defense as the Court supposes. If the analyst cannot [**2557] reach
the courtroom in time to testify, however, a Melendez-Diaz objection grants
the defense a great windfall: The analyst's work cannot come into evidence.
Given the prospect of such a windfall (which may, in and of itself, secure
an acquittal) few zealous advocates will pledge, prior to trial, not to
raise a Melendez-Diaz objection. Defense counsel will accept the risk that
the jury may hear the analyst's live testimony, in exchange for the chance
that the analyst fails to appear and the government's case collapses. And
if, as here, the defense is not that the substance was harmless, but instead
that the accused did not possess it, the testimony of the technician is a
formalism that does not detract from the defense case.

In further support of its unlikely hope, the Court relies on the Brief for
Law Professors as Amid Curiae 7-8, which reports that nearly 95% of
convictions are obtained via guilty
[*355]
plea and thus do not require in-court testimony from laboratory analysts.
Ante, at 325. What the Court does not consider is how its holding will alter
these statistics. The defense bar today gains the formidable power to
require the government to transport the analyst to the courtroom at the time
of trial. Zealous counsel will insist upon concessions: a plea bargain, or a
more lenient sentence in exchange for relinquishing this remarkable power.

B

As further reassurance that the "sky will not fall after today's
decision," ibid., the Court notes that many States have enacted
burden-shifting statutes that require the defendant to assert his
Confrontation Clause right prior to trial or else "forfeit" it "by silence."
Ante, at 326. The Court implies that [***349] by shifting the burden [****30] to the defendant
to take affirmative steps to produce the analyst, these statutes reduce the
burden on the prosecution.

The Court holds that these burden-shifting statutes are valid because, in
the Court's view, they "shift no burden whatever." Ante, at 327. While this
conclusion is welcome, the premise appears flawed. Even what the Court calls
the "simplest form" of burden-shifting statutes, ante, at 326, do impose
requirements on the defendant, who must make a formal demand, with proper
service, well before trial. Some statutes impose more requirements, for
instance by requiring defense counsel to subpoena the analyst, to show good
cause for demanding the analyst's presence, or even to affirm under oath an
intent to cross-examine the analyst. See generally Metzger, Cheating the
Constitution, 59 Vand. L. Rev. 475, 481-485 (2006). In a future case, the
Court may find that some of these more onerous burden-shifting statutes
violate the Confrontation Clause because they "impos[e] a burden . . . on
the defendant to bring . . . adverse witnesses into court." Ante, at 324.

[*356] The burden-shifting statutes thus provide little reassurance that this
case will not impose a meaningless formalism across the board.

C

In a further effort to support its assessment that today's decision will
not cause disruption, the Court cites 10 decisions from States that, the
Court asserts, "have already adopted the constitutional rule we announce
today." Ante, at 325-326, and n. 11. The Court assures us that "there is no
evidence that the criminal justice system has ground to a halt in the[se]
States." Ante, at 326.

On inspection, the citations prove far less reassuring than promised.
Seven were decided by courts that considered themselves bound by Crawford.
These [**2558] cases thus offer no support for the Court's assertion that the state
jurists independently "adopted" the Court's interpretation as a matter of
state law. Quite the contrary, the debate in those seven courts was over
just how far this Court intended Crawford to sweep. See, e. g., State v.Belvin, 986 So. 2d 516, 526 (Fla. 2008) (Wells, J., concurring in part and
dissenting in part) ("I believe that the majority has extended the Crawford
and Davis decisions beyond their intended reach" (citations omitted)). The
Court should correct these courts' overbroad reading of Crawford, not
endorse it. Were the Court to do so, these seven jurisdictions might well
change their position.

Moreover, because these seven courts only "adopted" the Court's position
in the wake of Crawford, their decisions are all quite recent. These States
have not yet been subject to the widespread, adverse results of the
formalism the Court mandates today.

The citations also fail to reassure for a different reason. Five of the
Court's ten citations — including all three pre Crawford cases — come from
States that have reduced the confrontation right. Four States have enacted a
burden-shifting statute requiring the defendant to give early notice of his
intent to confront the analyst. See Part III-B, supra[*357];
Colorado: Hinojos-Mendoza v. People, 169 P. 3d 662, 668-671 (Colo. 2007),
Colo. Rev. Stat. Ann. § 16-3-309 (2008) (defendant must give notice 10 days
before trial); Georgia: [***350] Compare Miller [****31] v. State, 266 Ga. 850, 854-855,
472 S. E. 2d 74, 78-79 (1996) (striking down earlier notice statute
requiring defendant to show good cause, prior to trial, to call the
analyst), with Ga. Code Ann. § 35-3-154.1 (2006) (defendant must give notice
10 days before trial); Illinois: People v. McClanahan, 191 Ill. 2d 127,
133-134, 729 N. E. 2d 470, 474-475 (2000), 111. Comp. Stat., ch. 725, §
5/115-15 (West 2006) (defendant must give notice "within 7 days" of "receipt
of the report"); Oregon: State v. Birchfield, 342 Ore., at 631-632,
157 P. 3d, at 220 (suggesting that a "typical notice requirement" would be
lawful), see Ore. Rev. Stat. § 475.235 (2007) (defendant must give notice 15
days before trial). A fifth State, Mississippi, excuses the prosecution from
producing the analyst who conducted the test, so long as it produces
someone. Compare Barnette v. State, 481 So. 2d 788, 792 (Miss. 1985) (cited
by the Court), with McGowen v. State, 859 So. 2d 320, 339-340 (Miss. 2003)
(the Sixth Amendment does not require confrontation with the particular
analyst who conducted the test). It is possible that neither Mississippi's
practice nor the burden-shifting statutes can be reconciled with the Court's
holding. See Part III-B, supra. The disruption caused by today's decision
has yet to take place in these States.

* * *

Laboratory analysts who conduct routine scientific tests are not the kind
of conventional witnesses to whom the Confrontation Clause refers. The
judgment of the Appeals Court of Massachusetts should be affirmed.

The following authorities hold that State Rules of Evidence permit
certificates, which state that scientific instruments were in good working
order, to be admitted into evidence without confrontation: Wester v. State,
528 P. 2d 1179, 1183 (Alaska 1974) (certificate stating that breathalyzer
machine was in working order); Best v. State, 328 A. 2d 141, 143 (Del. 1974)
(certificate that [****33] breathalyzer was in working order); State v. Rines,
269 A. 2d 9, 13-15 (Me. 1970) (manufacturer's certificate stating that
blood-alcohol test kit was in working order admissible under the
business-records exception); McIlwain v. State, 700 So. 2d 586, 590-591
(Miss. 1997) (same).

This summary does not include decisions that find test results
inadmissible because the State failed to lay a proper foundation. Rather
than endorse the minority view, those cases merely reaffirm the government's
burden to prove the authenticity of its evidence and the applicability of an
exception to the state hearsay rule. See, e. g., State v. Fisher,
178 N. W. 2d 380 (Iowa 1970) (laboratory test of victim's bodily fluid
inadmissible under business-records exception because the prosecution did
not show that it was kept in regular course of business); State v. Foster,
198 Kan. 52, 422 P. 2d 964 (1967) (no foundation laid for introduction of
blood-alcohol test because the prosecution did not show that the test was
conducted in the usual course of business); Moon v. State, 300 Md. 354,
367-371, 478 A. 2d 695, 702-703 (1984) (blood-alcohol test inadmissible
because insufficient foundational evidence that the test was conducted in a
reliable manner); cf. Davis, supra, at 440 (laboratory test of victim's
bodily fluid admitted under business-records exception to state hearsay
rule); Garlick, 313 Md., at 215, n. 2, 223-225, 545 A. 2d, at 30, n. 2, 34
(laboratory test of defendant's blood falls within "firmly rooted" hearsay
exception).